United States Court of Appeals

For the Eighth Circuit

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No. 15-3941

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Louis A. Hardison, also known as Mohammed L. Carrol

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Joplin

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 Submitted: March 9, 2017

 Filed: June 14, 2017

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Before RILEY, Chief Judge, GRUENDER, Circuit Judge, and SCHREIER, 1 2

District Judge.

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RILEY, Chief Judge. 

The Honorable William Jay Riley stepped down as Chief Judge of the United

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States Court of Appeals for the Eighth Circuit at the close of business on March 10,

2017. He has been succeeded by the Honorable Lavenski R. Smith. 

The Honorable Karen E. Schreier, United States DistrictJudge for the District 2

of South Dakota, sitting by designation. 
Louis Hardison appeals his conviction for being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), arguing the district

court erred in combining an evidentiary hearing on his motion to suppress with his

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bench trial and in not excluding all evidence obtained as a result of a search of his

home. We affirm, finding (1) no error in the procedure the district court used in this

case, and (2) Hardison voluntarily consented to the search. See 28 U.S.C. § 1291

(appellate jurisdiction). 

I. BACKGROUND

In the early morning hours of November 27, 2013, Dushawnne Hoyt reported

a domestic disturbance involving a firearm. Officers from the Neosho Police

Department (Missouri) responded to the call. Hoyt told officers Hardison put a knife

to her throat, threatened to kill her, and then held a gun to her head, again threatening

to kill her. Officer Trent Gold approached Hardison, who was then standing inside

his residence at the front door, to ask Hardison if they could speak inside the home. 

Hardison replied, “sure.” 

Another officer, Sergeant Brad Fienen, arrived on the scene later while Officer

Gold was inside the home with Hardison. Sergeant Fienen entered the residence and

asked Hardison if he had a gun inside the home. Hardison pointed to a green duffel

bag and told Sergeant Fienen, “The only gun I have is in there.” Sergeant Fienen

secured the gun from the bag and, because he observed it did not match Hoyt’s

description of the gun Hardison threatened her with, asked Hardison if he had another

firearm. After hesitating, Hardison told the officers there was another gun, led the

officers to the bedroom, and said while pointing in the room, “In the ductwork,

there’s a gun down there. You can go get it.” Sergeant Fienen removed the grate to

the air conditioning and retrieved a second firearm, which did match Hoyt’s

The Honorable M. Douglas Harpool, United States District Judge for the

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Western District of Missouri. 

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description. Hardison told the officers he knew he was not supposed to be in

possession of a firearm as a felon and he knew he was going to prison. 

The grand jury returned a one-count indictment charging Hardison with being

a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). The district court issued a scheduling and trial order on December 19,

2014, requiring the parties to file all pretrial motions on or before twenty days from

that date. Hardison’s bench trial was scheduled to begin June 15, 2015. On June 12,

2015, the Friday before Hardison’s Monday trial date and well-past the court’s

deadline for filing pretrial motions, Hardison filed a motion to suppress all evidence

obtained “as a result of the November 27, 2013, detention, seizure, arrest, and search

of [Hardison].” Hardison “request[ed] an evidentiary hearing be granted or that the

matter be permitted to be taken up with his bench trial.” (Emphasis added). 

Hardison’s bench trial commenced on schedule. Citing concerns for efficiency

and fairness “given the timing,” the district court “decided the best way to take

up . . . the propriety of the evidence is to simply receive evidence on the suppression

motion at the same time [it] hear[s] the evidence related to the trial and then the Court

will not consider that evidence that it believes should be suppressed if the Court

reaches that conclusion.” Neither party objected to proceeding in this manner, a

manner Hardison initially had proposed, and counsel for both parties explicitly agreed

to the procedure. 

The government introduced several exhibits of evidence obtained as a result

of the search of Hardison’s home, and the district court noted it would “assume that

[Hardison] ha[s] an objection to the exhibits and the testimony of what happened after

[the officer] goes in the home,” and would not “make any final ruling on the

admissibility of that evidence” until after the trial was completed. Hardison was the

only witness for the defense. Neither Hardison nor his attorney clarified that

Hardison intended his testimony to be limited to the issue of suppression. Hardison

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testified he did not consent to a search and he had sole dominion and control over the

residence. Hardison’s attorney objected to only one question—“Isn’t it true that the

officer found weapons and firearms at your home on November 27, 2013?” —and the

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district court accepted Hardison’s answer pending its decision as to the suppression

motion. 

Two weeks after the trial, the district court issued an order denying Hardison’s

motion to suppress, finding Hardison voluntarily consented to the search. In a

separate order, the district court found Hardison knowingly possessed firearms, as

evidenced by Hardison telling “the officers where in the residence the weapons could

be found. The firearms were found in [Hardison’s] home, he testified that he placed

them there, and he testified that he resides alone and exercises complete dominion

and control over his residence.” The district court found Hardison guilty of being a

felon in possession of a firearm. Hardison filed numerous pro se motions, including

a pro se motion for a new trial, all of which the district court denied. Hardison filed

a timely notice of appeal “from the judgement [sic] and sentence” of the district

court. 

II. DISCUSSION

A. Combined Evidentiary Hearing and Bench Trial 

Hardison asserts the combined evidentiary hearing and bench trial and the use

of his suppression testimony in assessing his guilt amount to constitutional, structural,

and plain error. Hardison first notes the district court erred in “failing to rule on

defendant[’s] pretrial Motion to Suppress before trial.” It is within the district court’s

discretion not to hold an evidentiary hearing at all, see United States v. Losing, 539

F.2d 1174, 1177 (8th Cir. 1976), and, while “[t]he court must decide every pretrial

This is a negative and confusing question for the witness and fact finder and

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also invades the province of the fact finder as to what is true. A proper question

would be: “Did the officer find firearms at your home on November 27, 2013?” 

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motion before trial unless it finds good cause to defer a ruling,” Fed. R. Crim. P.

12(d), there is certainly good cause to defer a ruling where the defendant files his

motion the Friday before his Monday bench trial. See United States v. Dittus, 453

F.2d 1335, 1336 (3d Cir. 1972) (finding good cause to disallow a suppression hearing

where an evidentiary hearing would have delayed the start of trial). Under the

circumstances of this case, the short time period before trial and the concern for

efficiency in presenting evidence support the district court’s decision to combine the

evidentiary hearing with Hardison’s bench trial, and to defer ruling on the motion to

suppress until all evidence had been presented.

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We likewise find no structural error “undermining the fairness of a criminal

proceeding as a whole,” United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004),

as Hardison consented to, and indeed suggested, the specific procedure used by the

district court. This is not one of the “very limited class of cases” amounting to

structural error requiring automatic reversal. Johnson v. United States, 520 U.S. 461,

468 (1997); see also Neder v. United States, 527 U.S. 1, 8 (1999) (listing examples

of structural error, including “complete denial of counsel,” “racial discrimination in

selection of grand jury,” and “denial of public trial”). 

Hardison claims a constitutional error occurred when the district court

improperly considered his suppression testimony for the purpose of determining his

guilt. “[W]hen a defendant testifies in support of a motion to suppress evidence on

We note it would have been within the district court’s discretion to refuse to 5

consider Hardison’s motion to suppress because the motion was untimely, having

filed the motion five months after the deadline for filing pretrial motions. See Fed.

R. Crim. P. 12(c)(3) (“If a party does not meet the deadline for making a [pretrial]

motion, the motion is untimely. But a court may consider the defense, objection, or

request if the party shows good cause.”); see also United States v. Trancheff, 633

F.3d 696, 698 (8thCir. 2011) (“The desire to suppress incriminating evidence and the

retention of new counsel are not by themselves sufficient to establish good cause to

justify relief from a waiver of a defense, objection, or request under Rule 12.”). 

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Fourth Amendment grounds, his testimonymay not thereafter be admitted against him

at trial on the issue of guilt unless he makes no objection.” Simmons v. United States,

390 U.S. 377, 394 (1968). Hardison expressly requested his motion to suppress “be

permitted to be taken up with his bench trial,” and Hardison’s attorney affirmatively

consented to the procedure on the day of trial. The district court did assume Hardison

had “an objection to the exhibits and the testimony of what happened after he goes

in the home” due to Hardison’s motion to suppress such evidence, and Hardison’s

attorney made a “limited objection” to the admissibility of Hardison’s answer to one

government question during cross-examination, because Hardison’s answer “may get

into evidence that would be suppressible.” It is not clear from the record whether the

“limited” objection was intended to limit Hardison’s testimony to the motion to

suppress, or whether the objection was merely preserving Hardison’s objection to the

use of any evidence obtained as a result of the search. 

Hardison contends this objection was an “attempt[] to limit the testimony for

the purpose of the suppression motion only,” but acknowledged at oral argument it

was not clear if this objection was based on the potential Simmons violation. 

Hardison never clearly stated he was objecting to the potential use of Hardison’s

testimony to evaluate his guilt. Cf. United States v. Williams, 994 F.2d 1287, 1294

(8th Cir. 1993) (“‘Preserving an issue is a matter of . . . clearly stating the grounds for

the objection, so that the trial court has an opportunity to prevent or correct the error

in the first instance.’” (quoting United States v. Thornburg, 844 F.2d 573, 575 (8th

Cir. 1988))). At no point, either before or during Hardison’s testimony, did Hardison

or his attorney explicitly request Hardison’s testimony be limited only to the motion

to suppress. Simmons expressly allows a fact finder to consider testimony

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Hardison asserted at oral argument the district court was obligated to warn him

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the court would use his testimony to determine the merits of the case and, without

such a warning, any waiver was not fully knowing and voluntary. Hardison did not

fully raise and address this argument in his opening brief and was unable at oral

argument to cite to any support for the proposition Simmons requires a knowing

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introduced on a motion to suppress also during the merits of the case if the defendant

fails to object to such use. Simmons, 390 U.S. at 394; cf. United States v. Polk, 574

F.2d 964, 965 (8th Cir. 1978) (reasoning the defendant’s testimony at the suppression

hearing could be considered at the subsequent bench trial where “counsel had agreed

that evidence presented at the suppression hearing could be considered by the trial

court in deciding the merits”).

Hardison further argues, even in the absence of any structural or constitutional

error, the district court’s use of his testimony to determine his guilt was plain error. 

See United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc). Because

there was sufficient evidence to find Hardison guilty of the charged offense without

considering his testimony, there was no plain error “‘seriously affect[ing] the fairness,

integrity or public reputation of judicial proceedings.’” United States v. Olano, 507

U.S. 725, 732 (1993) (quoting United States v. Young, 470 U.S. 1, 15 (1985)). 

B. Denial of Motion to Suppress and Motion for a New Trial

Hardison next contends the evidence obtained during the search of his home

should have been suppressed because the officers did not have a warrant and

Hardison did not voluntarily consent to the search. 

Hardison claims his consent was limited to allowing Officer Gold inside his

home for a conversation, and the officers exceeded the scope of his consent when

they searched. Consent does not need to be explicit to be valid. See United States

v. Lakoskey, 462 F.3d 965, 973 (8th Cir. 2006). “The precise question is not whether

[the defendant] consented subjectively, but whether his conduct would have caused

a reasonable person to believe that he consented.” United States v. Jones, 254 F.3d

692, 695 (8th Cir. 2001). 

waiver of constitutional rights, and we decline to address this issue today. 

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Hardison replied “sure” to the officer’s request to speak with him inside the

home. When inside and asked if “there was a gun in the residence,” Hardison pointed

to a green duffel bag in the hallway and said, “The only gun I have is in there.”

Hardison did not object to a subsequent search of that bag. When the officer asked

about another gun, explaining the gun in the duffel bag was not the firearm Hoyt had

described, Hardison directed the officers to where he kept a second gun in his

bedroomair conditioning ductwork. Hardison told the officersthey could “go get it.” 

Even if Hardison never expressly consented to the search of his bag that uncovered

the first firearm, he was “present and fail[ed] to object to the continuation of a

search,” which is “circumstantial evidence [that] provide[s] proof that the search

conducted was within the scope of consent.” United States v. Beckmann, 786 F.3d

672, 678 (8th Cir. 2015). Hardison’s conduct would cause a reasonable person to

believe he consented to the search.

This consent was also voluntary under the totality of the circumstances. See

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Hardison notes the officers

never advised him he had the right to refuse consent, yet, “[w]hile knowledge of the

right to refuse consent is one factor to be taken into account, the government need not

establish such knowledge as the sine qua non of an effective consent.” Id. And

contrary to Hardison’s suggestion, the fact multiple officers were present when

Hardison consented does not, by itself, demonstrate Hardison was unduly coerced to

consent. See United States v. Drayton, 536 U.S. 194, 205 (2002). Officer Gold

testified he did not yell, draw his weapon, or otherwise threaten or intimidate

Hardison in any way, and Officer Gold described Hardison as polite and not agitated

during their conversation. The police report does note Hardison exhibited signs of

being intoxicated, but “the evidence does not suggest that he was so intoxicated that

he was not ‘competent to understand the nature of his acts.’” United States v. Willie,

462 F.3d 892, 896 (8th Cir. 2006) (quoting United States v. Rambo, 789 F.2d 1289,

1297 (8th Cir. 1986)). The remaining characteristics of Hardison and the

situation—Hardison’s age of 52 years, his prior experience with law enforcement, 

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the fact Hardison was not restrained when he gave consent, and his intelligence

demonstrated by multiple pro se motions arguing Fourth Amendment issues—show

the district court did not clearly err in finding Hardison voluntarily consented. 

See United States v. Garcia, 613 F.3d 749, 753 (8th Cir. 2010) (“Whether consent is

voluntary is a question of fact, reviewed for clear error.”). The district court properly

denied Hardison’s motion to suppress the evidence and did not abuse its discretion

in denying his motion for a new trial.7

III. CONCLUSION

Because the combined evidentiary suppression hearing and bench trial, under

the circumstances, was not error, structural or otherwise, and Hardison voluntarily

consented to the search of his home, we affirm. 

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On appeal, Hardison appears to argue the officers needed a warrant to enter

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his house because, at the time of the search, they already had probable cause to arrest

Hardison. Hardison did not raise this argument in his suppression motion or motion

for a new trial, but, even if he had, the district court still would not have abused its

discretion in denying the motion because the officers were not entering Hardison’s

home to make an arrest and, as discussed above, Hardison voluntarily consented to

the search. See Payton v. New York, 445 U.S. 573, 576 (1980) (“[T]he Fourth

Amendment to the United States Constitution . . . prohibits the police from making

a warrantless and nonconsensual entry into a suspect’s home in order to make a

routine felony arrest.” (Emphasis added)). 

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